Zouki v Liverpool City Council

The applicant acknowledges that the foundations constructed for the garage and entry level of the townhouse do not comply with the plans. However it submits that such footings are severable from the footings for the living room. Further the applicant does not concede that the footings for the garage and entry area do not comprise 'work' for the purposes of satisfying s 95(4) of the EP&A Act.

In Green, Giles JA having referred to the judgment of the New South Wales Court of Appeal in Iron Gates Developments v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 said at p 247:- Section 95(4) of the Act (1999) is in different terms from s 99 of the unamended Act. It does not speak of work "relating to that development", instead speaking of work "relating to the building, subdivision or work". It does not speak of commencement of "the development the subject of that consent", instead speaking of the physical commencement of building, engineering or construction work "on the land to which the consent applies". These differences do not, in my opinion, detract from the application of the reasoning in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc . If the building, engineering or construction work in question was prohibited and illegal, it was not work "relating to the building, subdivision or work", that is, the building, subdivision or work the subject of the development consent; it could not properly be described as commencing the building, subdivision or work the subject of the development consent.

In Green the work relied on by the developer did not relate to any of the engineering or construction drawings which had been approved by the relevant consent authority. In Byron Shire Council v Detala Pty Limited [2001] NSWLEC 234 Bignold J declared the inability of a party to rely upon work that was either prohibited or which did not qualify as work relating to the building.

In respect of the garage and entrance footings for the townhouse the applicant has omitted the excavation necessary to establish the footings at the correct level. The work carried out therefore departs radically from the plans and would require demolition. Such work was unrelated to the development consent and therefore unauthorised. It cannot be rectified, and in these circumstances the Court is unable to conclude that such work comprises work "relating to the building" as required by the provision of s 95(4) of the EP&A Act.

Council further submits that the work in the western portion of the townhouse cannot be severed from the unauthorised work and accordingly cannot be relied upon by the applicant as constituting work for the purpose of s 95(4) of the EP&A Act. In support of its submission council relies upon the Giles JA in Green (at p 250) wherein His Honour said (at par 70):- The concept is carrying out development, relevantly erection of building, the act or process as distinct from the product of the act or process. In my opinion it would be unrealistic to sever work of the nature of the activities from later steps in the erection of the second townhouse on the appellant's land, and would be particularly unrealistic to do so while still categorising that work as engineering or construction work. 17. Giles JA was clearly referring in the above extract to the circumstance in which the work is performed subsequent to the unauthorised or prohibited work. His Honour's findings confirm that subsequent works cannot retrospectively validate the work which was prohibited or illegal.

18. Neither Green nor Iron Gates establishes that non-complying work when carried out with complying work renders all of the work unauthorised. A contrary conclusion would mean that complying work would not qualify for the purpose of s 95(4) of the EP&A Act if a small portion of the work was non-complying. Such a result would not be logical, and does not follow from the application of s 95(4) of the EP&A Act.

19. In Green Giles JA (at p 250) observed that excavation for the footings of a building can constitute building, engineering or construction work. The footings for the living room portion of townhouse may be incomplete in that additional work will be required to raise their level to the meet the underside of the proposed slab. Such works are in the correct position laterally and as far as they have been completed constitute work for the footings as shown on the plans. As was observed by Giles JA in Green at (p 250), "… attention must be focused on the act or process. It is a question of fact and degree...". It is unnecessary to establish whether the works constitute "substantial commencement" as was required pursuant to the previous legislation (see Day v Pinglen Pty Ltd (1981) 148 CLR 289).

20. The Court concludes that the work undertaken by the applicant was "physically commenced" within the meaning of s 95(4) of the EP&A Act, and work to the western portion of the townhouse is building, engineering or construction work relating to the building. Accordingly the requirements of s 95(4) of the EP&A Act are satisfied.

21. The Court answers the questions of law stated to it as follows: Issue 1: affirmative Issue 2: negative Orders

1. That the proceedings be listed before the Registrar for any further directions on the 11th day of April 2002.
2. Costs reserved.
3. The exhibits be returned

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